Wanrooy and Minister for Infrastructure, Transport, Regional Development and Local Government

[2010] AATA 815

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1073

GENERAL ADMINISTRATIVE DIVISION		)
Re		Peter Wanrooy

Applicant

And Minister for Infrastructure, Transport, Regional Development and Local Government

Respondent

DECISION

Tribunal Senior Member A K Britton

Date22 October 2010

PlaceSydney

Decision

Pursuant to regulation 11 of the Motor Vehicle Standards Regulations 1989, the applicant’s application to import a 1999 BMW R850R motorcycle is approved on condition that:

(i)      The applicant provide the Minister with evidence that the vehicle is registered for use in New Zealand on a public road or has been issued with a current “certificate of fitness” and on that basis is eligible for registration in New Zealand.

(ii)     The applicant complies with any requirements as to road safety imposed in respect of the vehicle by the Minister.

....................[SGD]................

Senior Member

CATCHWORDS

TRANSPORT – motor vehicle standards – discretion to permit import of non-complying vehicles – where vehicle of personal significance to applicant – where vehicle certified roadworthy but not registered in foreign jurisdiction – discretion to permit importation exercised with conditions

Motor Vehicle Standards Act 1989 (Cth) – ss 3, 5, 18

Motor Vehicle Standards Regulations 1989 (Cth) – regs 11, 12, 13.

Motor Vehicle Standards Amendment Regulations 2009 (Cth)

Shi v Migration Agents Registration Authority (2008) 235 CLR 28

Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355

Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417

Re Haughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540

REASONS FOR DECISION

22 October 2010 Senior Member A K Britton           

1.      In early 2010, Mr Peter Wanrooy migrated to Australia from New Zealand with his family. He applied to the Minister for Infrastructure, Transport, Regional Development and Local Government, to import into Australia a 1999 BMW motorcycle that he had owned for over six years. That application was refused. Mr Wanrooy has applied to the Administrative Appeals Tribunal for review of that decision.

2.      The Motor Vehicles Standards Act 1989 (Cth) (“the Act”) prohibits the importation of any road vehicle that is “non-standard” or does not have an “identification plate”: s 18. A “non-standard” vehicle is one that does not comply with the “national standards” — namely, the national standards for road vehicles as determined by the Minister. An identification plate fixed to a vehicle establishes that the vehicle complies with those standards. It is agreed that Mr Wanrooy’s motorcycle is “non-standard” and does not have an “identification plate”, and accordingly is caught by the general prohibition contained in s 18 of the Act.

3.      The Motor Vehicles Standards Regulations 1989 (Cth) (“the Regulations”) confer on the Minister, and the Tribunal acting as substitute decision-maker, discretionary powers to approve the importation of motor vehicles which would otherwise be caught by the general prohibition contained in s 18 of the Act. The issue to be determined is whether those powers can and should be exercised in this matter. Regulations 11, 12 and 13 may be relevant to that issue.

Can approval be granted under regulation 12?

4.      Regulation 12 gives the decision-maker the power to approve an application to import a non-standard vehicle or a vehicle that does not have an identification plate, providing a number of criteria are met. These include at reg 12(1)(a) that :

… the application [to import] is accompanied by a written statement from the manufacturer, or from the manufacturer's authorised representative in Australia, stating that the vehicle complied with the national standards in force for the vehicle when the vehicle was first manufactured and delivered for use in transport…

5.      In answer to a request made by Mr Wanrooy, BMW Australia advised that on the basis of advice received from the Department of Infrastructure, Transport, Regional Development and Local Government, it was unable to supply a letter of compliance as the model of his motorcycle had been constructed to comply with New Zealand, not Australian, regulations. BMW pointed out that the model fulfilled “all requirements of the Australian Design rules”, except in relation to the following:

1.        Yellow front side reflex reflectors

2.        Rear wheel mud guard

Furthermore the motorcycle has to be equipped with the legal indicating labels:

Australian Compliance label

Australian Noise emission label

6.      Mr Wanrooy argued that the reflectors and mud guards were minor accessories in respect of which non-compliance could easily be rectified. Regarding the noise emission label, he claimed that he had purchased an Australian-approved accessory. He asserted that if installed, the motorcycle would comply with Australian noise standards.

7.      The decision-maker must undertake a two-step process when exercising its power under reg 12 of the Regulations to approve, or to decline to approve, an application for importation. The decision-maker must first decide if each of the criteria listed in reg 12(1) are satisfied, and, if so, decide whether the discretionary power to approve importation should be exercised.

8.      It may be that Mr Wanrooy is correct, and if minor modifications were made the motorcycle would fully comply with the relevant national standards. Nonetheless, it is a mandatory requirement under reg 12 that the application for import be accompanied by a written statement from the manufacturer's authorised representative in Australia stating that the vehicle complied with the relevant national standards. As such a statement has not been provided, the pre-condition to the exercise of power under reg 12 is not satisfied. The discretion cannot therefore be exercised.

Can approval be granted under regulation 13?

9.      Regulation 13 provides that the decision-maker may approve an application to import a non-standard road vehicle or a road vehicle that does not have an identification plate, if, they are satisfied that the nine criteria set out in reg 13(1) are met. It is agreed that Mr Wanrooy satisfies all but one criterion, namely:

(ad) during that period of ownership [a continuous period of at least 12 months immediately before Mr Wanrooy arrived in Australia] the vehicle was available to the applicant for use in transport…

10.     “Use” is defined by s 5 of the Act to mean, among other things, “drive”. The phrase “use in transport” means:

… in relation to a road vehicle, means use the vehicle on a public road otherwise than:

(a) to move it in order to:

(i) have work done on it; or

(ii) have it registered under a law; or

(iii) protect it; or

(b) for a prescribed purpose.

11.     In the 12 months prior to his arrival in Australia, Mr Wanrooy regularly drove the motorcycle around his rural property but not on a public road. Throughout that period, the motorcycle was eligible for registration in New Zealand as a result of being certified as roadworthy in June 2008. However, Mr Wanrooy decided not to register the motorcycle because of the associated costs and uncertainty surrounding his family’s move to Australia.

12.     To satisfy paragraph (ad) of reg 13(1), the subject vehicle must be available to drive on a public road. It is not sufficient that the vehicle would have been available had it been registered or had other steps undertaken. As the motorcycle was not available to Mr Wanrooy to drive on a public road in the 12 months immediately prior to his arrival in Australia, reg 13(1) is not satisfied. The power to approve importation under that provision therefore cannot be exercised.

Should approval be granted under Regulation 11?

13.     Regulation 11 gives the decision–maker a broad discretionary power to approve the importation of a non-standard vehicle or one that does not have an identification plate:

(1) The Minister may approve an application to import a non‑standard road vehicle or a road vehicle that does not have an identification plate.

(2) An approval may be given subject to conditions specified in the instrument of approval.

(3) Without limiting the generality of subregulation (2), the Minister may require that a plate in such form and containing such information as the Minister determines be placed on the vehicle.

(4) An approval must be given by signed instrument.

14.     The Regulations do not specify the factors to be taken into account when exercising the discretionary power conferred by reg 11. The discretion must be exercised in a manner consistent with the policy and objects of the Act, which are set out in s 3:  

The main objects of this Act are:

(a) to achieve uniform vehicle standards to apply to new vehicles when they begin to be used in transport in Australia; and

(b) to regulate the first supply to the market of used imported vehicles.

15.     Mr Wanrooy explained that he wanted to import the motorcycle because he and his son had worked on it over a number of years to make it road worthy. He said that an indication of his attachment to the vehicle was that he had selected it for importation from among the five other bikes he owned in New Zealand. He conceded that an equivalent model could be purchased in Australia, but asserted that there was a significant price differential between the sale price in Australia and New Zealand. He estimated that an equivalent motorcycle if purchased in Australia would cost between $AUD2,500 and $AUD4,500 more than what he would probably receive if he sold his motorcycle in New Zealand. He said this represented a significant amount to his family, which had recently incurred substantial costs in relocating to Australia. He pointed out that the letter from BMW establishes that the motorcycle largely complies with the relevant national standards. He also pointed out that had he taken steps to have the bike registered in New Zealand he would have been able to import it “without question” under reg 13.

16.     It is contended for the Minister that the discretionary power to approve importation under reg 11 should be exercised sparingly. It is argued that it would undermine the objects of the Act if import applications were acceded to in the absence of good and cogent reasons. The comments made by Deputy President Hotop in Re Marra and Minister for Transport and Regional Services [2003] AATA 323 at [26] are cited in support of this proposition:

The Tribunal accepts that the discretionary power conferred by reg 9B(1) of the Regulations [the predecessor to reg 11], although broad and unstructured in its terms, should in practice be exercised only in exceptional circumstances and then only in such a way as would not serve to undermine or frustrate the policy and objects of the Act and the Regulations: see, for example, Re Trajkovski (above) at para 32. One such kind of circumstance, envisaged in Re Trajkovski (at para 34), where it might be appropriate to exercise that discretionary power is in the event that, if that were not done, injustice would necessarily be suffered by the relevant importer.

17.     It was also argued for the Minister that consistent with the approach taken by the Tribunal in the past, there must be some element of hardship or unfairness before the discretionary power conferred by reg 11 is exercised. Re Da Silva and Department of Transport and Regional Services [2004] AATA 1355 at [59] was cited in support:

In my opinion, the exercise of the discretion in r 11 should be approached on the basis that if there would be some element of unfairness or injustice to the applicant if approval were not granted, and the grant of approval would not undermine or frustrate the policy and objects of the legislative scheme, then the discretion should be exercised in the applicant’s favour. The totality of the relevant circumstances must be considered – including the reasons why an applicant “almost but not quite” satisfied one of the set of circumstances that would have required approval to be granted.

18.     In addition, it was submitted for the Minister that Mr Wanrooy’s circumstances are neither “exceptional” nor establish that he would suffer any great hardship if his application was refused. It was pointed out that once the cost of transporting the motorcycle to Australia was taken into account — which Mr Wanrooy estimates to be about $2000 — the estimated price differential is significantly reduced. It was argued for the Minister, that Mr Wanrooy’s position is demonstrably different to that faced by the applicants in Re Hunt and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 417 and ReHaughey and Minister for Infrastructure, Transport, Regional Development and Local Government [2008] AATA 540 where it was decided that the power to exercise the discretionary power available under the predecessor to reg 11, should be exercised. In Hunt, the Tribunal was satisfied that the applicant had a strong personal attachment to the vehicle, which had been bequeathed to him by his father. In Haughey, the applicant would have complied with the 12 month use rule but for the fact that he was forced to prematurely flee South Africa following a violent home invasion.

19.     Regulation 11 confers a broad and unstructured discretion that allows the decision-maker to take a flexible approach to a wide range of situations. In my view it would be inappropriate, as urged on behalf of the Minister, to read into the provision a requirement that the applicant’s circumstances be “exceptional” or “special”. To fetter the discretion in such a way would be inconsistent with the language of the provision. Nonetheless, I agree with the submission that too-ready an accession to an application to import a non‑standard vehicle or one that does not have an identification plate could undermine the objects of the Act, and that there must be a good and cogent reason before the power conferred by reg 11 is exercised.

20.     While I accept that Mr Wanrooy would not suffer significant hardship if his application were refused, in my view a cogent reason has been advanced which would justify the exercise of the power conferred by reg 11. The motorcycle is clearly of some significance to Mr Wanrooy. He and his son worked on it over an extended period. New Zealand authorities were satisfied that it was roadworthy and it was eligible to be registered. While as correctly pointed out for the Minister, “close enough is not good enough” for the power under reg 13 to be exercised, the broad discretionary power conferred by reg 11 is not so constrained. The fact that the vehicle would have been eligible for importation under reg 11 had it been registered in New Zealand in the 12 months prior to Mr Wanrooy arriving in Australia suggests that the policy objective of imposing road safety standards designed to protect the Australian community would not be undermined if the vehicle were to be imported.

21.     Furthermore there is nothing to indicate, and nor was this suggested, that the importation of the subject vehicle would constitute an abuse of the “personal imports scheme” which recent amendments to the Regulations were designed to protect. The Explanatory Memorandum to the Motor Vehicle Standards Amendment Regulations 2009, which amended the Regulations (among other things), stated that:

Regulation 13 is an existing exemption under the Act; the exemption is generally called the “personal imports scheme”. The purpose of the exemption is to enable migrants and expatriate Australians returning from long periods overseas to bring their vehicles with them.

The personal imports scheme has been open to abuse as it allows applicants to import one vehicle each year with no requirement for the applicant to return to Australia so long as the applicant can demonstrate continuous ownership and use overseas over a 12 month period. For example, organised vehicle syndicates can ship exempt vehicles to Australia (ostensibly on behalf of expatriate Australians) and thereby bypass normal certification arrangements for used vehicles under the registered automotive workshop scheme.

22.       For these reasons I have decided, subject to the following, that this is an appropriate case to exercise the power to approve importation under reg 11.

23.       When the decision now under review was made the subject vehicle was eligible to be registered in New Zealand; this is no longer the case. On 26 June 2008, Vehicle Testing New Zealand (a privately-owned approved certifying body) issued Mr Wanrooy with a “certificate of fitness” in respect of the vehicle. This certificate was issued on the basis that the vehicle complied with relevant safety standards established by the New Zealand authorities. That certificate was a prerequisite for registration of the vehicle under the relevant New Zealand road transport regulations. Around the same time, Mr Wanrooy also received an “application for registration of a motor vehicle (MR2A)” in respect of the subject vehicle. The application form states that if the vehicle is not registered within two years of the date the vehicle compliance certificate is issued, i.e. 26 June 2010, it must be recertified before registration. Accordingly unless recertified the vehicle cannot be registered in New Zealand.

24.     My decision must be made on the basis of the facts as they now stand not those that applied at the time the original decision was made: Shi v Migration Agents Registration Authority (2008) 235 CLR 28. It is plainly relevant to the exercise of the discretionary power conferred by reg 11 that the motorcycle is no longer eligible for registration in New Zealand or the subject of a current “certificate of fitness”. In my view, it would be inconsistent with the objects of the statutory scheme to approve Mr Wanrooy’s application in these circumstances without conditions, notwithstanding that at the time the decision under review was made, the vehicle was eligible for certification in New Zealand.

25.     Accordingly, I have decided to approve Mr Wanrooy’s application subject to the condition that within four months of the date of this decision he obtain registration of the motorcycle in New Zealand or, a “certificate of fitness” that would allow the motorcycle to be so registered in New Zealand. I have also decided that Mr Wanrooy must comply with any requirements as to road safety imposed in respect of the vehicle by the Minister.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ....................................[SGD]...................................
  Associate to Senior Member Britton

Date of Hearing:  15 October 2010
Date of Decision:  22 October 2010
The Applicant was self-represented.
Solicitor for the Respondent:     DLA Phillips Fox